The Queen v Deam [2002] NZCA 233; [2003] 1 NZLR 57; (2002) 19 CRNZ 646 (24 October 2002)

Last Updated: 15 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA186/02

THE QUEEN

V

LYNDELL MALCOLM DEAM

Hearing:	25 September 2002
Coram:	Tipping J McGrath J Glazebrook J
Appearances:	W M Johnson for Appellant B J Horsley for Respondent
Judgment:	24 October 2002

JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J

Introduction

[1] Mr Deam was convicted in the District Court at Lower Hutt, by a Judge sitting without a jury, under s59(1)(b) of the Land Transport Act 1998 of refusing to accompany without delay an enforcement officer when required to do so under s69 of the Act. He was also convicted under s60(1)(a) of refusing to permit a blood specimen to be taken having been required to do so under s72 of the Act. He appealed to the High Court against his convictions. His appeal was dismissed and the Judge refused his application for leave to appeal to this Court.
[2] On 19 August 2002 this Court granted special leave to appeal on the following questions of law which only relate to the conviction of refusing to permit a blood specimen to be taken:

1. Is there an obligation on an enforcement officer on requesting an evidential breath test to advise the suspect that the suspect is required to comply with the request without delay?
2. Does the failure so to advise a suspect preclude the exercise of the power to require the suspect to undergo a blood test pursuant to s72(1) of the Land Transport Act 1998?

The relevant legislation

[3] Under s60(1)(a) of the Act a person commits an offence if he or she:

Fails or refuses to permit a blood specimen to be taken after having been required to do so under s72 by an enforcement officer.

[4] Section 72(1)(a) provides that:

A person must permit a registered medical practitioner or medical officer to take a blood specimen from the person when required to do so by an enforcement officer if –

(a) The person fails or refuses to undergo without delay an evidential breath test after having been required to do so by an enforcement officer under s69.
[5] Section 72(2) provides that:

A person who has been required by an enforcement officer under subsection (1) to permit the taking of a blood specimen must, without delay after being requested to do so by a registered medical practitioner or medical officer, permit that practitioner or medical officer to take a blood specimen from that person.

[6] There is a savings provision as follows in s64(2):

It is no defence to proceedings for an offence that a provision forming part of sections 68 to 75A, and 77 has not been strictly complied with or has not been complied with at all, provided there has been reasonable compliance with such of those provisions as apply.

Background facts

[7] On 15 April 2000 Mr Deam was seen driving his car the wrong way down Queen Street, Wainuiomata. He parked the car (hitting the kerb in the process) and tried to enter a bar across the road. He was refused entry, primarily because the security officer considered him to be intoxicated. Some verbal abuse followed. Mr Deam then went back to his car, released his dog and returned to the bar. He did, however, take the dog back when requested but began jumping up and down on the back of his car making obscene gestures. He continued for some 10 minutes. At this stage the Police arrived on the scene, having been earlier alerted to Mr Deam’s erratic driving by a taxi driver.
[8] The Police officer formed the view that Mr Deam was intoxicated. He had not personally seen him driving but, because of what he had been told by witnesses, he required Mr Deam to undergo a breath-screening test and, in doing so, used the word “forthwith”. Mr Deam refused. The officer then requested Mr Deam to accompany him to the Police Station for the purpose of undergoing an evidential breath test or blood test or both. He was also cautioned and told of his right to consult a lawyer.
[9] Mr Deam said he was not going anywhere and tried to push past the constable. He was taken by the arm and guided towards the open door of the patrol car but refused to get in. He was then arrested and informed of his rights under the New Zealand Bill of Rights Act 1990 (BORA). This advice was repeated upon arrival at the Police Station. He was then asked to undergo an evidential breath test using an Intoxilyzer 5000 device. The words “without delay” were not used. Mr Deam refused to undergo the test saying “No, I’ve done nothing wrong. Don’t fuck with me”. The constable’s evidence was that he conducted the test nevertheless in accordance with the requisite notice by pressing the button and following the instructions on the display. The printout stated the test was an “incomplete test”.
[10] The constable then required Mr Deam to provide a blood specimen. The requisite BORA advice was also repeated and this time Mr Deam asked to consult a lawyer. Another officer contacted the lawyer he had nominated and he was left in a room to talk with her. When he had finished his consultation he was asked again whether he agreed to provide a blood specimen. Again there is no evidence the words “without delay” were used. He replied “I don’t consent to shit”. When asked his reason for refusing said “No. What do you expect?” and refused to sign the requisite part of the blood specimen form.

The District Court and High Court Decisions

[11] In the District Court the Judge referred to the High Court cases of Gibbons v Police (High Court, Christchurch, AP 91/97, 22 March 1998, Chisholm J) and Hawes v Police (High Court, Christchurch, AP 325/94, 22 March 1995, Rabone J). The Judge expressed the view that the facts in this case were closer to those in Gibbons than those in Hawes. In Gibbons a failure to use the word “forthwith”, the term used in the previous legislation, was held not to be fatal where the suspect had nonetheless submitted to the test.
[12] The Judge did not decide the point, however, as she made a finding that Mr Deam would have refused to undertake any of the tests, whatever the words used and thus held that the officer’s failure to use the words “without delay”, where appropriate, was saved by the reasonable compliance provision in s64(2).
[13] In the High Court the Judge dismissed the appeal against both convictions. In regard to the offence of refusing to provide a blood specimen he held that there was no requirement that a suspect be advised that he or she must comply “without delay”. He expressed the view that, had the Legislature intended to impose such a duty, it would undoubtedly have said so, and that it is not for the Court to write into the Act language that is not there. In any event, he upheld the District Court Judge’s view that any failure to comply with s72 would have been saved by the reasonable compliance provision of s64(2). He came to a similar conclusion in relation to the provisions relating to the offence of refusal to accompany.

Submissions of counsel

[14] Mr Johnson for Mr Deam submits that the High Court Judge erred when he held that the legislation did not require an enforcement officer to advise a suspect of the need to comply “without delay”. The offence of failing to give a blood specimen, as set out in s60, refers to s72. Section 72 imports the duty to advise that the obligation is to provide an evidential breath test and also to do so without delay. In his submission, suspects should be clearly advised of their immediate obligation regardless of their attitude or situation. Even if suspects by their attitude appear unlikely to comply, the words “without delay” are designed to bring to their mind the seriousness of the obligation to comply. To suggest the advice would have made no difference is to undermine the obligation to inform fully.
[15] Mr Johnson also submits that the failure to use the words was not “saved” by the reasonable compliance provision in s64(2). He (reluctantly he says) accepts that the section would allow the use of words that had the same meaning as the statutory formula. He accepted, therefore, that there had been reasonable compliance in respect of the breath screening test because the officer had used the word “forthwith”. He also accepts (more reluctantly he says) that the concept of compliance without delay can be conveyed by actions. In this case, therefore, he no longer seeks to challenge the conviction of refusing to accompany because the officer took Mr Deam by the arm and tried to guide him into the car and this would have been sufficient to convey the immediacy of the request.
[16] Mr Johnson, however, submits that nothing less than unequivocal words or actions would suffice and there were no such unequivocal words or actions in relation to the evidential breath test or the blood test. Mr Johnson says that the decision of Young J in Gaudin v Police (High Court, Christchurch, AP 99/98, 10 June 1998) was wrong. The position is rather as set out by Rabone J in Hawes v Police (supra). Both of these decisions are discussed below.
[17] The Crown’s primary submission is that nowhere in the legislation is there any direction or requirement that an enforcement officer use the words “without delay” at the time of requiring a motorist to undergo the breath or blood alcohol testing procedures. The key focus of the legislation in the Crown’s submission is to enable an enforcement officer to require motorists to undergo breath or blood alcohol testing procedures. It is that requirement that must be conveyed to motorists. The fact that those procedures must be complied with “without delay” is a secondary consideration to the primary focus of actually undergoing the procedure. The failure to comply without delay must be proved by the prosecution but there is no requirement that the secondary timing element be conveyed at the time of the request to comply. To require an enforcement officer on every occasion to use the words “without delay” is to impose an unnecessary obligation on what is already an elaborate and technical process.
[18] If the Crown fails in its primary submission, the secondary submission is that whether a motorist should be advised of the need to undergo the procedures “without delay” must be dependent upon the circumstances of a particular case. The Crown refers to the decision of Young J in Gaudin in this regard.
[19] The Crown’s final submission was that in any event, if there is no prejudice to a defendant by a failure to use the words “without delay”, the omission of the words will be saved by the reasonable compliance provisions of section 64(2). In this case there was no prejudice as it was perfectly clear that Mr Deam was not going to comply whatever had been said or done.

Discussion

[20] The first question of law is whether there is a necessity to advise the suspect that the suspect is required to comply with a request to undergo an evidential breath test without delay. In our view the statutory provisions are clear. There is a need to advise a suspect of the need to comply without delay. Section 72(1)(a) provides that a person must permit a blood specimen to be taken if the person “fails or refuses to undergo without delay an evidential breath test after having been required to do so” (emphasis added). In their ordinary meaning the words “required to do so” must refer back to the whole of the preceding phrase, including the timing element of “without delay”. There is no reason in either language or policy terms to restrict the words “required to do so” merely to the act of undergoing the evidential breath test.
[21] This means that we reject the Crown’s primary submission and respectfully differ from the High Court Judge. This is not the end of the matter, however. The question now arises as to how the requirement to comply without delay must be conveyed. Mr Johnson has quite correctly accepted that it does not have to be conveyed by the use of the exact statutory words but that it can be conveyed by words of similar meaning and by actions. In Gaudin Young J also suggested that the context in which the requirement to take a test was made could convey the immediacy required. He went on to say that there may be cases where the behaviour of the suspect implies at least a possibility that he or she does not understand the immediacy with which compliance is required. In that case he indicated it may be necessary to advise the suspect that the test is required forthwith, the word in the legislation he was considering.
[22] In our view it would certainly be best practice for the words “without delay” (or equivalent words) to be used when an enforcement officer requires a suspect to undergo an evidential breath test or other similar procedure. However, if it is plain from the actions and conduct of the officer or the context that compliance is required without delay then that will suffice. It would appear to us to be plain from the actions and conduct of the officer, for example, if the requirement to undergo the test is made at a time the officer is proffering the device to the suspect (which appears to have been the case here, despite Mr Johnson’s fanciful suggestion that the officer may have attempted the test out of sight of Mr Deam). In other circumstances the context of the request may plainly convey the obligation to comply without delay.
[23] We agree with Young J that, if there appears a possibility from the words or actions of the suspect that he or she does not understand the requirement (such as in the case of Hawes where the suspect appeared to be prevaricating rather than refusing), then the requirement to comply without delay may need to be explained more explicitly. This would, however, be to ensure that proof both of the intent to refuse to comply and of the intent to refuse to comply without delay could be assured. The statutory requirement to convey the requirement to comply without delay would already have been met through the actions and conduct of the officer or the context of the request, and in normal circumstances a suspect would be assumed to have understood the requirement.
[24] In this case it must have been quite clear from the whole sequence of events, including the proffering of the breath testing device and the blood specimen form at the time of making the requests, that immediate compliance was required. The obligation to communicate the requirement to comply without delay was thus met.
[25] Having come to this view we do not need to consider the second question which the parties indicate was directed to the question of whether the reasonable compliance provision in s64(2) would have applied.

Result

[26] The first question is answered as follows: There is an obligation on an enforcement officer on requesting an evidential breath test to advise a suspect that the suspect is required to comply with the request without delay. This obligation can be satisfied by the use of the words “without delay” or equivalent words but it can also be satisfied where the requirement to comply without delay is plain from the conduct and actions of the officer or from the context of the request to undertake the evidential breath test.

[27] There was no need, for the reasons set out above, for us to answer the second question.

[28] For the reasons given above the requirement to advise Mr Deam of the need to comply without delay was met. The appeal is therefore dismissed.

Solicitors:

Crown Law Office, Wellington